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13 March, 2018  ▪  Yuriy Lapayev

National security overhauled

What’s new for Ukraine’s defense and security institutions in the President’s national security draft law?

At his latest press conference on February 28, Petro Poroshenko mentioned the draft law on the national security of Ukraine among important initiatives. Authored by him, this document had been submitted to the Verkhovna Rada at No8028 shortly before for immediate review.  

This draft law shifts the accents in Ukraine’s approach to national security. It replaces the wider and more encompassing notions used before with the outline of key areas that largely focus on military threats, state security, law and order. Other issues, such as economic, environmental and energy security, are to be tackled in other documents.

This approach can help Ukraine set more specific tasks and control their fulfillment better. This is one of the reasons why this draft law, even if important, may have a hard time passing through parliament. Those tasked with enforcing these changes in the future are probably not ready to do so. Therefore, they are likely to resist the passing of it.

The draft law shifts the security priorities from the more liberal ones focused primarily on security of individuals followed by ensuring the country’s existence, to the more classic ones — the preservation of the country as an entity of state authorities. This looks timely given the situation around Ukraine. If the draft law is passed, most laws and bylaws on the work of defense and security authorities will have to be amended accordingly.

RELATED ARTICLE: How Ukraine's security, defense and the capability to counter hybrid aggression changed in 2017

Apart from that, the draft law establishes the current state of Ukraine’s security as the starting point from which to move forward. Prior draft laws focused more on what should come as a result of their enforcement, thus formulating the future. The new approach comes closer to the situation on the ground but offers no answers on the general vector of development. 

The major changes refer to the Armed Forces of Ukraine. One is the introduction of commander-in-chief position in addition to the Chief of the General Staff. This is a logical continuity of the power division tradition in Ukraine’s army where every military unit has a commander who takes decisions and is accountable for them, and chiefs of staff who prepare these decisions for the commander. It will also legally streamline the current situation where the Chief of the General Staff of Ukraine’s Armed Forces de fact acts as Commander-in-Chief as well. Chief of the General Staff will report to Commander-in-Chief. President remains in the position of Supreme Commander.  

 Another change is in the description of portfolio for a new Armed Forces position, the Joint Forces Commander. This official will report to the Commander-in-Chief of the Armed Forces of Ukraine and be in charge of operational control, planning of use and management of all joint forces. This creates a vertical military hierarchy where the military will gain maximum competencies for the enforcement of the new De-Occupation Law. This authority also brings full responsibility for anything happening in the war area, which is not always a plus for the military.  

This will most likely lead to covert competition for spheres of control between defense and security entities, which hardly improves their overall efficiency. 

The appointment of a civilian defense minister is one of the most debated aspects of the draft law. The nature of this office requires the minister to be a political figure, a proactive advocate of his or her domain’s interests, including in confrontations with MPs or other ministers. By contrast to civilians, the military should be beyond politics and have no right to conflicts or disputes. They should fulfill orders, not discuss them. 

RELATED ARTICLE: International lawyer and diplomat Volodymyr Vasylenko on the important aspects of Ukraine's new Deoccupation Law

A civilian minister of defense would bring forth more accountability, transparency and civilian control as recommended by NATO. Therefore, the drafting of the bill discussed here involved international experts from the European Union Advisory Mission (EUAM) and NATO Liaison Office in Ukraine. According to Ukraine’s Ministry of Defense, its officials and representatives of the Armed Forces General Staff were not involved in the process. The military are expected to offer their proposals on the draft law after its submission to the Verkhovna Rada.

Democratic civilian control is an important aspect of the draft law. Obviously, no defense or security entity wants extra publicity or openness given the specifics of its work. However, excessive secrecy is a good cover for corrupt abuse or failure to fulfill their tasks. The draft law contains a number of provisions that are largely based on the Constitution of Ukraine. The goal is to prevent changes in favor of one or another defense or security entity in violation of Ukraine’s basic law. As it often happens in Ukraine’s legislation, the devil is in the detail. This fragment of the draft law is hardly perfect. It is now up to MPs to look for flaws in it and fix them.

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